by Daniel Rietiker
The events that suddenly changed not only the course of warfare, but also of human history, were the explosions of the first nuclear weapon in the desert of Alamogordo, New Mexico, on 16 July 1945, followed by the subsequent bombings by the USA of Hiroshima, on 6 August 1945, and Nagasaki three days later. The world commemorates these days the 70th anniversary of the first uses of nuclear weapons against inhabited towns.
In order to underline the destructive effects of the two nuclear weapons used, distinguishing it from all other weapons, it is enough to recall the words by Takashi Hiraoka, Mayor of Hiroshima, expressed in the oral proceedings before the ICJ in the case of the Legality of the Threat or Use of Nuclear Weapons of 1996:
The atomic bombs dropped on Hiroshima and Nagasaki shattered all war precedent. The mind-numbing damage these nuclear weapons wrought shook the foundations of human existence…
Beneath the atomic bomb’s monstrous mushroom cloud, human skin was burned raw. Crying for water, human beings died in desperate agony. With thoughts of these victims as the starting point, it is incumbent upon us to think about the nuclear age and the relationship between human beings and nuclear weapons…
The unique characteristics of the atomic bombing was that the enormous destruction was instantaneous and universal. Old, young, male, female, soldier, civilian – the killing was utterly indiscriminate. The entire city was exposed to the compound and devastating effects of thermal rays, shock wave blast, and radiation…
Above all, we must focus on the fact that human misery caused by the atomic bomb is different from that caused by conventional weapons. [H]uman bodies were burned by the thermal rays and high-temperature fires, broken and lacerated by the blast, and insidiously attacked by radiation. These forms of damage compounded and amplified each other, and name given to the combination was “A-bomb disease…”
[T]he bomb reduced Hiroshima to an inhuman state utterly beyond human ability to express or imagine. I feel frustrated at not being able to express this completely in my testimony about the tragedy of the atomic bombing…
It is clear that the use of nuclear weapons, which cause indiscriminate mass murder that leaves survivors to suffer for decades, is a violation of international law.” (ICJ, Verbatim Record, 7 November 1995, pp. 24-26, 28, 32 and 35).
Iccho Ito, Mayor of Nagasaki, after having repeated to the Court the accounts of survivors, concluded:
It is my ardent hope that, in its review, this Court will decide impartially about the inhumanity of nuclear weapons and their illegality in view of international law and in that way bring strength and hope, not only to the citizens of Nagasaki and Hiroshima, but to all the peace-loving people of the word. This indeed will contribute more than anything else to the repose of the souls of the 214 000 people who perished in the atomic wastelands of Nagasaki and Hiroshima 50 years ago.” (ibid., p. 45).
In reply, the Court recognized that nuclear weapons can’t be compared with other weapons and underlined their unmatched destructive impact on the human being:
35. …[The Court] also notes that nuclear weapons are explosive devices whose energy results from the fusion or fission of the atom. By its very nature, that process, in nuclear weapons as they exist today, releases not only immense quantities of heat and energy, but also powerful and prolonged radiation. According to the material before the Court, the first two causes of damage are vastly more powerful than the damage caused by other weapons, while the phenomenon of radiation is said to be peculiar to nuclear weapons. These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy al1 civilization and the entire ecosystem of the planet.
The radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. Further, the use of nuclear weapons would be a serious danger to future generations. Ionizing radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations.
36. In consequence, in order correctly to apply to the present case the Charter law on the use of force and the law applicable in armed conflict, in particular humanitarian law, it is imperative for the Court to take account of the unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come.”
It is notorious that, in spite of its recognition of the special nature of nuclear weapons and their particularly disastrous effect for the human being, the view expressed by the ICJ in its Advisory Opinion was nevertheless a differentiated one. It came to the conclusion that the threat or use of nuclear weapons would “generally” be contrary to the rules of international law applicable in armed conflict, and in particular humanitarian law (para E, first para of the ICJ’s conclusions). But the Court, in spite of the comprehensive body of law protecting the human being in armed conflict, went on to say as follows:
However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.” (para E, second para).
This part of the Opinion was highly controversial and adopted by seven votes to seven, with the President’s casting vote. (para E).
Since the ICJ rendered its controversial Opinion, almost 20 years have passed and, during all this time, many voices and convincing arguments have been raised in favour of a general prohibition of nuclear weapons in international law, including the majority of States in the recent initiative on the humanitarian impact of nuclear weapons (see here for the 3rd Conference on the humanitarian impact, held in Vienna, December 2014). It is not excluded that the Court would nowadays come to a more firm conclusion as regards the illegality of nuclear weapons under international law. It can be expected that the ICJ, in the pending cases introduced by the Marshall Islands against all Nuclear Weapons States, will express itself on this issue, since it is highly relevant for the question of disarmament under Article VI of the NPT whether the potential use of weapons that a few number of States possess would under all circumstances be illegal under international law.
For these reasons, the 70th anniversary of Hiroshima and Nagasaki shall be used for commemorations (see here for an event organized by our friends from ICAN Switzerland), but from my point of view, it should also be taken as a new starting point for serious negotiations towards a world without nuclear weapons. It is obvious that the best means for preventing human disasters caused by nuclear weapons, even accidentally, is to get rid of them altogether. Encouraging trends and ideas have been presented in recent years and the younger generation seems to take up the issue again, after decades of lack of interest and passivity.
For the time being, SAFNA is of the opinion that nuclear disarmament can only be achieved by implemting the existing instruments in good faith, in particular Article VI NPT. But this provision having largely remained lettre morte, it has to be reinforced by the adoption of new instruments banning the use of nuclear weapons or banning and eliminating these weapons in absolute terms, inspired by the Chemical Weapons Convention (CWC) or the Ottawa and Oslo Conventions. The two latter ones are clearly victim-oriented. I am convinced that a new instrument on nuclear weapons should follow the same path. In this regard, we should listen to and rely on the experience and wisdom of Hibakushas, the living witnesses and survivals of Hiroshima and Nagasaki, in order to avoid such tragedies in future.